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PETITIONER: SREE SREE ISHWAR SRIDHAR JEW

       Vs.

RESPONDENT: SUSHILA BALA DASI AND OTHERS.

DATE OF JUDGMENT: 16/11/1953

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. MUKHERJEA, B.K. BOSE, VIVIAN

CITATION:  1954 AIR   69            1954 SCR  407  CITATOR INFO :  R          1965 SC1874  (17)  R          1974 SC 740  (10)

ACT:     Hindu  law-Religious endowments-Dedication of  properties  Dedication  to idol subject to charge in favour of heirs  or  bequest  to  heirs  subject to charge  in  favour  of  idol-  Construction   of  will-Adverse   possession-Possession   of  shebait, whether can be adverse to idol.

HEADNOTE:  The   question  whether  the  idol  itself  is  the   true beneficiary  subject to a charge in favour of the  heirs  of the  testator,  or  the heirs  are  the  true  beneficiaries subject to a charge for the upkeep, worship and expenses  of the idol, has to be determined by a conspectus of the entire provisions  of the deed or will by which the properties  are dedicated.  Pande  Har Narayan v. Surja, Kunwari (I.L.R. 47 I.A.  143) referred to.   A  provision giving a right to the sevayats to reside  in the  premises  dedicated  to the idol  for  the  purpose  of carrying  on the daily and periodical worship and  festivals does not detract from the absolute character of a dedication to the idol.  Gnanendra  Nath Das v. Surendra Nath Das (24 C.W.N.  1026) referred to.  No shebait can, so long as he continues to be the shebait, ever claim adverse possession against the idol. Surendrakrishna  Ray  v. Shree  Shree  Ishwar  Bhubaneshwari Thakurani (I.L.R. 60 Cal. 54) approved.   Judgment of the Calcutta High Court affirmed.

JUDGMENT:   CIVIL APPELLATE JURISDICTION Civil Appeal No. 201 of 1952.    Appeal from the Judgment and Decree dated the 5th  March, 1951,  of the High Court of judicature at Calcutta  (Harries C.J. and Banerjee J.) in Appeal from Original Decree No. 118 of  1950, arising out of the Judgment and Decree  dated  the

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15th  June,  1950, of the said High Court  in  its  Ordinary Original Civil jurisdiction in Suit No. 2379 of 1948.   N.C.  Chatterjee  (S.   N. Mukherjee, with  him)  for  the appellant.   N.N.  Bose (A.  K. Dutt, with him) for the  respondent  in Civil  Appeal  No. 201 of 1952 and  petitioner  for  special leave. 408    M.C. Setalvad, Attorney-General for India, (B.  Sen, with him)  for  respondents Nos. 1, 2 and 3 in the  petition  for special leave.    1953.   November  16.   The Judgment  of  the  Court  was delivered by    BHAGWATI  J.-This  is an appeal on  a  certificate  under article  133(1)  of  the Constitution from  a  judgment  and decree  passed by the Appellate Bench of the High  Court  of Calcutta, modifying on appeal the judgment and decree passed by Mr. Justice Bose on the original side of that court.    One  Dwarka  Nath  Ghose was the  owner  of  considerable moveable and immoveable properties.  On the 10th June, 1891, he made and published his last will and testament whereby he dedicated to this family idol Shree Shree Iswar Sridhar  Jew his  two immoveable properties, to wit, premises No. 41  and No.  40/1.   Grey  Street  in  the  city  of  Calcutta.   He appointed his two sons Rajendra and Jogendra executors of Ms will and provided that his second wife Golap Sundari and the two  sons Rajendra and jogendra should perform the  seva  of the  deity  and on their death their  heirs  and  successors would be entitled to perform the seva.    Dwarka  Nath  died on the 16th March, 1892,  leaving  him surviving his widow Golap Sundari and his two sons  Rajendra and  Jogendra.   On the 19th July, 1899, Rajendra  made  and published his last will and, testament whereby he  confirmed the  dedication made by Dwarka Nath with regard to  premises Nos.  41  and  40/1 Grey Street and  appointed  his  brother Jogendra  the  sole executor thereof.  He died on  the  31st January,1900,  and  Jogendra  obtained on  the  24th  April, 1900,.  probate  of his said will.  Probate of the  will  of Dwarka  Nath  was  also obtained by  jogendra  on  the  31st August, 1909.    On  the  4th September 1909,  Bhupendra,  Jnanendra.  and Nagendra,  then a minor, the three sons of Rajendra filed  a suit, being Suit No. 969 of 1909,on the original side of the High  Court at Calcutta against Jogendra, Golap Sundari  and Padma  Dassi,  the  widow  of  Sidheswar,  another  son   of Rajendra, for the                             409 construction  of the wills of Dwarka Nath and Rajendra,  for partition and other reliefs.  The idol was not made a  party to this suit.  The said suit was compromised and on the 24th November,  1910,  a  consent  decree  was  passed,   whereby jogendra  and  Golap  Sundari gave up their  rights  to  the sevayatship and Bhupendra, Jnanendra and Nagendra became the sevaits  of the idol, a portion of the premises No. 41  Grey Street  was  ;allotted  to the branch of  Rajendra  and  the remaining portion was allotted to jogendra absolutely and in consideration  of  a  sum of Rs. 6,500 to  be  paid  to  the plaintiffs, jogendra was declared entitled absolutely to the premises  No.  40/1 Grey Street.  The portions  allotted  to Jogendra  were subsequently numbered 40/2-A Grey Street  and the  portion of the premises No. 41 Grey Street allotted  to the  branch of Rajendra was subsequently numbered 41-A  Grey Street.     Jogendra  died on the 5th August, 1911, leaving  a  will whereby  he  appointed his widow Sushilabala  the  executrix

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thereof.   She  obtained  probate of the  will  on  the  6th August, 1912.     Disputes   arose   between  Bhupendra,   jnanendra   and Nagendra, the sons of Rajendra, and one Kedar Nath Ghosh was appointed   arbitrator  to  settle  those   disputes.    The arbitrator  made  his award dated the  12th  October,  1920, whereby   he  allotted  premises  No.  41-A   Grey   Street, exclusively   to  Nagendra  as  his  share  of  the   family properties.  Nagendra thereafter executed several  mortgages of the said premises.  The first mortgage was created by him in  favour  of Snehalata Dutt on the 19th  May,  1926.   The second mortgage was executed on the 4th June, 1926, and  the third  mortgage  on the 22nd February, 1927.   On  the  23rd February,  1927, Nagendra executed a deed of  settlement  of the said premises by which he appointed his wife Labanyalata and  his wife’s brother Samarendra Nath Mitter  trustees  to carry out the directions therein contained and in  pursuance of the deed of settlement he gave up possession of the  said premises in favour of the trustees.    Snehalata Dutt filed in the year 1929 a suit, being  Suit No. 1042 of 1929, against Nagendra, the trustees 410 under the said deed of settlement and the puisne mortgagees, for realisation of the mortgage security,.  A consent decree was  passed  in the said suit on the  9th  September,  1929. Nagendra  died  in June, 1931, and the  said  premises  were ultimately  put  up for sale in execution  of  the  mortgage decree and were purchased on the 9th December, 1936, by Hari Charan Dutt, Hari Pada Dutt and Durga Charan Dutt for a  sum of  Rs.  19,000.  A petition made by the purchasers  on  the 12th January, 1937, for setting aside the sale was  rejected by  the court on the 15th March, 1937.  Haripada Dutt  -died on the 3rd June, 1941, leaving him surviving his three sons, Pashupati  Nath Dutt, Shambhunath Dutt and  Kashinath  Dutt, the appellants before  us.  Haricharan Dutt conveyed Ms  one third     share   in  the  premises  to  them  on  the   4th March,1944,    and Durga Charan Dutt conveyed his  one-third share  to  them  on the 3rd May,  1946.   They  thus  became entitled  to  the  whole  of the  premises  which  had  been purchased  at  the auction sale held on  the  9th  December, 1936.     On the 19th July, 1948, the family idol of Dwarka  Nath, Sree  Sree Iswar Sridhar Jew, by its next  friend  Debabrata Ghosh, the son of Nagendra, filed the suit, out of which the present  appeal  arises,  against the  appellants  as,  also against  Susilabala  and the two sons of  Jogendra  by  her, amongst others, for a declaration that the premises Nos. 41- A  and 40/2-A Grey Street, were its absolute properties  and for  possession thereof, for a declaration that the  consent decree  dated  the 24th November, 1910, in Suit No.  969  of 1909  and  the award dated the 12th October, 1920,  and  the dealings  made  by  the heirs of  jogendra  and/or  Rajendra relating  to the said premises or any of them purporting  to affect  its  rights in the said premises  were  invalid  and inoperative in law and not binding on it, for an account  of the  dealings  with  the  said premises,  for  a  scheme  of management  of the debutter properties and for its  worship, for discovery, receiver, injunction and costs. 411    Written  statements were filed by the appellants  and  by Susilabala  and the two sons of Jogendra denying the  claims of  the  idol and contending inter alia that  there  was  no valid or absolute dedication of the suit properties I to the idol  and  that  the said  premises  had  been  respectively acquired by them by adverse possession and that the title of

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the idol thereto had been extinguished.    The said suit was heard by Mr. Justice Bose who  declared the  premises  No.  41-A  Grey Street  to  be  the  absolute property  of  the idol and made the  other  declarations  in favour  of  the idol as prayed for.  The idol  was  declared entitled  to  possession  of the said  premises  with  mesne profits for three years prior to the institution of the suit till  delivery  of possession, but was ordered to pay  as  a condition for recovery of possession of the said premises  a sum of Rs. 19,000 to the appellants with interest thereon at the rate of 6 per cent. per annum from the 19th July,  1945, till payment or till the said sum was deposited in court  to the credit of the suit.  The learned judge however dismissed the  suit of the idol in regard to the premises  No.  40/2-A Grey Street as, in his opinion, Sushilabala as executrix  to her husband’s estate and her two sons had acquired title  to the said premises by adverse possession and the title of the idol thereto had been extinguished.    The appellants filed on the 18th August, 1950, an  appeal against  this  judgment being Appeal No. 118 of  1950.   The idol  filed  on the 20th  November,  1950,  cross-objections against  the decree for Rs. 19,000 and interest  thereon  as also the dismissal of the suit in regard to the premises No. 40/2-A  Grey Street.  The appeal, and  the  cross-objections came on for hearing before Harries C. J. and S. N.  Banerjee J.,   who  delivered  judgment  on  the  5th  March,   1951, dismissing the said appeal and allowing the  cross-objection in  regard  to  Rs. 19,000 filed by  the  idol  against  the appellants.   In  regard  however  to  the   cross-objection relating  to  premises  No. 40/2-A  Grey  Street  which  was directed  against Sushilabala and the two sons  of  jogendra the 412 learned  judges held- that the cross-objection  against  the co-respondents  was not maintainable and dismissed the  same with costs.    The  appellants  filed on the 31st May, 1951,  an  appli- cation  for leave to prefer an appeal to this court  against the said judgment and decree of the High Court at  Calcutta. A  certificate under article 133(1) of the Constitution  was granted  on the 4th June, 1951, and the High Court  admitted the  appeal  finally on the 6th August, 1951.  On  the  22nd November, 1951, the idol applied to the High Court for leave to  file cross-objections against that part of the  judgment and decree of the High Court,which dismissed its claims with regard  to  the premises No.40/2-A Grey  Street.   The  High Court  rejected the said application stating that there  was no  rule allowing cross-objections in the Supreme  Court.The said  cross-objections  were however printed  as  additional record,    By an order made by this court on the 24th May, 1953, the petition  of  the idol for filing cross-objections  in  this court  was allowed to be treated as a petition  for  special leave  to appeal against that part of the decree  which  was against  it, subject to any question as to limitation.   The appeal  as  also the petition for special  leave  to  appeal mentioned  above  came  on for hearing  and  final  disposal before us.  The appeal was argued but so far as the petition for  special leave to appeal was concerned the parties  came to an agreement whereby the idol asked for leave to withdraw the petition on certain terms recorded between the  parties. The  petition for special leave was therefore allowed to  be withdrawn  and  no objection now survives in regard  to  the decree passed by the trial court dismissing the idol’s claim to  the  premises, No. 40/2-A Grey Street.   The  appeal  is

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concerned only with the premises No. 41-A Grey Street.     It  was contended on behalf of the appellants that  the, dedication of the premises NO. 41 Grey Street made by Dwarka Nath under the terms of his will was a. partial  dedication, and that his sons Rajendra and jogendra and his widow  Golap Sundari, who were                             413 appointed  sevayats of the idol were competent to deal  with premises  No. 41 Grey Street after making the due  provision for  the  idol  as  they purported to do  by  the  terms  of settlement,  dated the 24th November, 1910.  It was  further contended  that Nagendra, by -virtue of the award dated  the 12th October, 1920, claimed to be absolutely entitled to the premises No. 41-A Grey Street and that his possession of the said  premises  thereafter  became  adverse  which   adverse possession  continued for upwards of 12 years  extinguishing the right of the idol to the said premises.     The  first contention of the appellants is  clearly  un- tenable  on  the very language of the will of  Dwarka  Nath. Clause 3 of the said will provided     "With  a view to provide a permanent habitation for  the said  deity,  I  do  by means of  this  will,  dedicate  the aforesaid  immovable  property the said house  No.  41  Grey Street  together  with land thereunder to the said  Sri  Sri Issur Sridhar Jew.  With a view to provide for the  expenses of his daily (and) periodical Sheba and festivals, etc.  The 3  1/2  Cattahs (three and half Cattahs) of rent  free  land more  or  less  that I have -on that very  Grey  Street  No. 40/1.......his also I dedicate to the Sheba of the said  Sri Sri Sridhar Jew Salagram Sila Thakur.  On my demise  none of my heirs  and  representatives  shall ever be  competent  to take the  income  of the said land No. 40/1 and  spend  (the same)for  household  expenses.   If  there  be  any  surplus left after defraying the Debsheba expenses the same shall be credited to the said Sridhar Jew Thakur’s fund and with  the amount so deposited repairs, etc; from time to time will  be effected to the said house No. 41 with a view to preserve it and  the taxes etc., in respect of the said  two  properties will be paid. . . ...... For the purpose of the carrying  on the daily (and) periodical sheba and the festivals, etc.  of the said Sri Issur Sridhar Jew Salagram Sila Thakur my  said ,second  wife  Srimati  Golap  Moni  Dasi,  and  1st  Sriman Rajendara  Nath and 2nd, Sriman Jogendra Nath Ghose born  of the womb of my first wife on living in the said house No. 41 Grey Street dedicated by me shall 414 properly  and  agreeably to each other  perform  the  sheba. etc.,  of the said Sri Sri Issur Sridhar Jew  Salagram  Sila Thakur  and  on  the  death  of  my  said  two  sons   their representatives,  successors  and heirs  shall  successively perform the sheba in the aforesaid manner and the  executors appointed  by  this  will of mine having got  the  said  two properties  registered in the Calcutta Municipality  in  the name of the said Sri Sri Issur Sridhar Jew Thakur shall  pay the  municipal  taxes, etc.’ and shall  take  the  municipal bills  in  his  name.  None  of  my  representatives  heirs, successors, executors, administrators or assigns shall  have any manner of interest in or right to the said two  debutter properties  and no one shall ever be competent to give  away or effect sale, mortgage or in respect of the     said   two properties nor shall the said two properties,     be sold on account of the debts of any one."     It  is  quite  true,that  a  dedication  may  be  either absolute  or partial. The     property may be given out  and out  to  the  idol, or it may be subjected to  a  charge  in

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favour  of the idol.  "The question whether the idol  itself shall  be  considered  the true beneficiary,  subject  to  a charge in favour of the heirs or specified relatives of  the testator for their upkeep, or that, on the other hand, these heirs  shall  be considered the true  beneficiaries  of  the property,  subject to a charge for the upkeep,  worship  and expenses  of  the  idol, is a question  which  can  only  be settled  by  a conspectus of the entire  provisions  of  the will": Pande Har Narayan v. Surja Kunwari(1).    What we find here in clause 3 of the will is an  absolute dedication of the premises No. 41 Grey Street to the idol as its  permanent habitation with only the right given  to  the sevayats to reside in the said premises for the purposes  of carrying on the daily and periodical seva and the festivals, etc.,  of  the  deity.   The  said  premises  are  expressly declared  as  dedicated  to  the  deity.   They  are  to  be registered  in  the  municipal records in the  name  of  the deity, the municipal bills have got to be taken also in  his name and none of the (1)  [1921] L.  R. 48 I. A. 143, 145, 146., 415 testator’s  representatives, heirs,  successors,  executors, administrators or assigns is to have any manner of  interest in  or right to the said premises or is to be  competent  to give  away  or  effect sale, mortgage,  etc.,  of  the  said premises.  There is thus a clear indication of the intention of the testator to absolutely dedicate the said premises  to the  deity  and it is impossible to urge that  there  was  a partial  dedication of the premises to the deity.  The  only thing which was urged by Shri N. C. Chatterjee in support of his contention was that the right to reside in the  premises was  given  to  the  sevayats  and  that  according  to  him detracted  from  the absolute character of  the  dedication. This  argument however cannot avail the appellants.  It  was observed  by Lord Buckmaster in delivering the  judgment  of the Privy Council in Gnanendra Nath Das v.   Surendra   Nath Das (1):    "In  that  case it is provided that the shebait  for  the time  being shall be entitled to reside with his  family  in the  said dwelling-house, but the dwelling-house  itself  is the place specially set apart for the family idols to  which specific  reference  is  made  in the  will,  and  in  their Lordships’  opinion the gift is only a perfectly  reasonable arrangement  to  secure  that the man  in  whose  hands  the supervision  of  the  whole estate  is  vested  should  have associated with his duties the right to reside in this named dwelling place."    The  first contention of the appellants  therefore  fails and we hold that the dedication of the premises No. 41 Grey, Street to the idol was an absolute dedication.   As  regards  the  second  contention,  viz.,  the  adverse possession  of  Nagendra, it is to be noted that  under  the terms   of  clause  3  of  the  will  of  Dwarka  Nath   the representatives,  successors  and  heirs  of  his  two  sons Rajendra and Jogendra were successively to perform the  seva in the manner therein mentioned and Nagendra was one of  the heirs  and  legal representatives Of Rajendra.   He  was  no doubt a minor on the 24th November, 1910, when the terms  of settlement  were arrived at between the parties to the  suit No. 969 of (1)  (1920) 24 C.W.N. 1926 at p. 1030. 416 1909.   His two elder brothers Jnanendra and Bhupendra  were declared  to be the then sevayats, but a right was  reserved to Nagendra to join with them as a sevayat on, his attaining

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majority.  So far as Nagendra is concerned there is a  clear finding  of fact recorded by Mr. Justice Bose on a  specific issue  raised  in  that behalf, viz, "Did  Nagendra  act  as shebait  of  the plaintiff deity under the wills  of  Dwarka Nath  Ghosh  and Rajendra Nath Ghosh ?" that he did  act  as such shebait and that his possession of the premises No. 41A Grey  Street  was referable to possession on behalf  of  the idol,  This finding was not challenged in the  appeal  court and  it  is too late to challenge the same  before  us.   If Nagendra  was  thus a sevayat of the idol it  could  not  be urged  that his possession could in any manner  whatever  be adverse to the idol and his dealings with the said  premises in  the  manner he purported to do after the  12th  October, 1920,  could  not  be evidence  of  any  adverse  possession against  the  idol.   The position of the  sevayat  and  the effect  of his dealings with the property dedicated  to  the idol  has been expounded by Rankin C.J.  in  Surendrakrishna Ray v. Shree Shree Ishwar Bhubaneshwari Thakurani (1) :-    "But,  in  the present case, we have to see  whether  the possession of two joint shebaits becomes adverse to the idol when they openly claim to divide the property between  them. The  fact  of  their possession is in  accordance  with  the idol’s title, and the question is whether the change made by them, in the intention with which they hold, evidenced by an application  of the rents and profits to their own  purposes and  other acts, extinguishes the idol’s right.  I am  quite unable to hold that it does, because such a change of inten- tion  can only be brought home to the idol by means  of  the shebait’s knowledge and the idol can only react to it by the shebait.   Adverse  possession,in such  circumstances  is  a notion  almost void of content.  True, any heir or   perhaps any descendant of the founder can bring a suit. against  the shebaits  on the idol’s behalf and, in the present case,  it may  be said that the acts of the shebaits must have I  been notorious in the family. (1)  (I 933) 60 Cal 54 at 7 7                             417 But  such  persons  have  no legal  duty  to  protect    the endowment and, until the shebait is removed or controlled by the court, he alone can act for the idol."    We  are in perfect accord with the observations  made  by Rankin C.J. If a shebait by acting contrary to the terms  of his  appointment  or in breach of his duty as  such  shebait could  claim  adverse possession of the  dedicated  property against the idol it would be putting a premium on dishonesty and  breach  of duty on his part and no  property  which  is dedicated  to an idol would ever be safe.  The  shebait  for the time being is the only person competent to safeguard the interests  of  the  idol, his possession  of  the  dedicated property  is the possession of the idol whose sevait he  is, and  no dealing -of his with the property dedicated  to  the idol  could afford the basis of a claim by him  for  adverse possession  of  the property against the idol.   No  shebait can,  so long as he continues to be the sevait,  ever  claim adverse  possession against the idol.  Neither Nagendra  nor the appellants who derive their title from the auction  sale held  on  the 9th December, 1936, could therefore  claim  to have  perfected  their title to the premises No.  41-A  Grey Street by adverse possession.  The second contention of  the appellants also therefore fails.    The further contention urged on behalf of the  appellants in  regard to the disallowance of the sum of Rs.  19,000  by the appeal court could not be and was not seriously  pressed before us and does not require any consideration.    The  result therefore is that the appeal fails  and  must

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stand dismissed with costs.                    Appeal dismissed.     Agent for the appellant : P. K. Chatterice.     Agent  for  the respondent No. 1 in the appeal  and  the petitioner, in the petition for special leave : Sukumar Ghose. Agent, for the respondents Nos. 1, 2 & 3 in the petition for special leave : P. K. Ghose. 418